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BEING SUED FOR FREE SPEECH – “SLAPP” SUITS (IN CALIFORNIA)

BEING SUED FOR FREE SPEECH - "SLAPP" SUITS (IN CALIFORNIA)This may come as a complete shock to you, but sometimes people don’t sue out of a pure sense of justice. No…really. I know that it seems incredible, but you’ll just have to trust me on this one. Sometimes, they’ll sue you just to try and harass you by dragging you through the court system – forcing you to spend precious time and money in the process. Many times, these suits are brought by wealthy people or businesses who can easily afford high-priced attorneys in order to silence their critics and make them bend to their will by settling out of court.

As a hypothetical example, let’s say that the Organization of Environmentalist Wackos decide to start a boycott of The Pollution Company as a way of protesting their business practices. The Wackos distribute flyers and peacefully picket the company’s headquarters – accusing it and its upper management of making our blue skies take on a bluish-brown tint. Rather than respond directly to the Wackos, the Pollution Company decides to sue the Wackos on various grounds including “defamation”, “unfair competition”, “intentional infliction of emotional distress”, etc.

The Wackos can’t afford any sort of protracted litigation with the Pollution Company, so they agree to stop their criticism of the Company in exchange for the dropping of the lawsuit.

Although this is America where we all have “freedom of speech”, this kind of scenario is unfortunately all too common. This phenomenon became known as “SLAPP” suits. “SLAPP” literally stands for “Strategic Lawsuit Against Public Participation”. A “SLAPP” suit describes the kind of lawsuit that is ultimately not designed to protect a legitimate right, but is instead filed simply to intimidate the defendant as an end in and of itself. “SLAPP” suits try to couch themselves in “legitimate” legal claims such as “defamation”, “unfair competition” or other vague claims that essentially target the speech of the defendant in order to try and silence them. That’s the real key: “SLAPP” suits are designed to try and silence defendants, not to redress legitimate wrongs that the law recognizes.

Over the years, a few states became aware of the “SLAPP” suit phenomenon and passed laws to try and curb the abuse of such legal tactics (appropriately known as anti-“SLAPP” laws). A typical example can be found in California, which passed a law that allows a defendant to be able to quickly get a case against him or her dismissed early on if it is found to be a “SLAPP” suit.

California’s anti-SLAPP law

California’s anti-“SLAPP” statute can be found in section 425.16 of the California Code of Civil Procedure. It allows anyone who is sued in that state to file a “special motion to strike” the complaint against them (thus forcing the court to toss out the lawsuit early on) – provided that they meet certain criteria. (Any quoted passages are taken directly from the text of the statute unless otherwise indicated.)

Filing deadlines

To begin with, the “special motion to strike” must generally be filed with the court within 60 days of your being served with the lawsuit. If it goes beyond 60 days, you will have to ask the court’s permission to file such a motion – which the court can then grant or deny at its discretion.

Once the motion is filed and served on the plaintiff, the court is generally obligated to schedule a hearing on the motion within 30 days, unless the docket conditions of the court require a later hearing.

“Stay of discovery”

Once the motion has been filed, it issues a “stay of discovery” in the case. This means that neither side can force the other to hand over evidence related to the case unless they first ask the court’s permission first. The court can only grant such permission upon a showing of “good cause” (which is usually limited to specific discovery requests that would be important to determining the final ruling of the “motion to strike”).

In furtherance of the person’s right of free speech…in connection with a public issue…

A “special motion to strike” can’t be filed in every case. It can only be used in cases “arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue…”

There are two threshold issues here: (1) The case has to involve your being sued over actions related to your First Amendment/free speech rights; and (2) such speech related activity must be in connection with a “public issue” (as opposed to a purely private issue between individuals).

These concepts are further defined by section (e) of the law which states in part:

[An] “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes:

(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;

(2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;

(3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest;

(4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

Furthermore, it should also be noted that section (a) of the statute proclaims that its provisions “shall be construed broadly”.

Since the language of the text is to be “construed broadly”, “written statements” don’t just refer to things written on notepads or in traditional newspapers. They can also include websites, bulletin boards, even (theoretically) skywriting performed by airplanes. California courts have ruled that both websites and newspapers are considered to be “public forums” for purposes of the third example of section (e) above.

Even if an “oral or written statement” is not made before, or in connection with, an “official proceeding” as called for in examples (1) & (2) of section (e) above, and even if it isn’t made “in a place open to the public or a public forum” as called for in example (3) above, you can still often file a “special motion to strike” under the provisions of section (e)(4) which allows you to the motion based on any “conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech” – provided that it is also “in connection with a public issue or an issue of public interest.”

Issues of “public interest”

As California’s anti-SLAPP statute makes clear, if your case doesn’t involve speech in connection with an “official proceeding”, then it at least must involve either a “public issue” or an issue of “public interest” in order for you to ask the court to toss out the complaint against you.

California courts have wrestled with the concept of just what constitutes a “public issue” or issue of “public interest” for purposes of this law. Although they generally recognize the concepts of “public issue” and “issues of public interest” interchangeably, there is still some debate as to how broadly these concepts are defined.

Courts had originally interpreted the phrase “public interest” rather narrowly – often confining it to subjects associated with government related debates (pending legislation, political campaigns, etc.). However, the California Legislature felt that the courts were interpreting the law’s scope too narrowly in this regard. As a result, it amended the law in 1997 to add the phrase “this section shall be construed broadly” (as referred to earlier in this article). Since the 1997 amendment, courts have indeed been interpreting the law in a much broader fashion – but there is still some debate as to just what constitutes an issue of “public interest”. The best way to try and get a handle on the concept would to examine a few recent cases that have attempted to interpret the phrase.

In Seelig v. Infinity Broadcasting Corp., the California Court of Appeals found an “issue of public interest” concerning a contestant on the controversial reality television show “Who Wants To Marry A Millionaire”. The plaintiff (Jennifer Seelig) was called a “local loser” and “big skank” by local radio personalities for participating in the show.

As the Seelig court explained, “In this program, women contestants competed for the right to marry a wealthy stranger. In addition to the marriage, complete with a prenuptial agreement, the bride received a $35,000 wedding ring and a new car. Plaintiff was not chosen to marry the putative multimillionaire, nor even selected as one of the five finalists, though she did appear briefly as a contestant in a portion of the television broadcast. During her time on air, she stated only her name, that she was from San Francisco, and that she worked in sales at KFRC, a San Francisco radio station. Her total participation in the television broadcast lasted less than one minute.” The court reasoned that “[b]y having chosen to participate as a contestant in the Show, plaintiff voluntarily subjected herself to inevitable scrutiny and potential ridicule by the public and the media.”

In contrast, the California Court of Appeals did not find an issue of public interest in the case of Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO. The Rivero case concerned a public employee’s union which published materials containing claims of misconduct against one of its former supervisors (plaintiff, David Rivero), who subsequently sued for libel. The union filed a Special Motion to Strike under the California anti-SLAPP statute.

The Rivero court found that the matter did not involve a matter of public interest under the terms of statute. Among the primary reasons for its conclusion was the fact that Plaintiff Rivero was “an individual who had previously received no public attention or media coverage” prior to the events of the case and that his mere supervision of eight custodians did not itself create a matter of “public interest”.

Although courts are directed to interpret the phrase “public interest” broadly, determining just what is an issue of “public interest” is still essentially done on a case-by-case basis. Each case will present its own unique set of facts. Most issues concerning the workings of government will generally be considered an issue of “public interest” under the plain terms of the statute. Beyond that, you will need to consider just how much the issue has already been debated or has previously been in the public eye. When in doubt, consult an attorney.

So if you are sued in California and can show to the court that your case involves a cause of action “arising from any act…in furtherance of [your] right of petition or free speech under the United States or California Constitution in connection with a public issue,” then the California anti-SLAPP statute applies to your case.

Plaintiff must show a “probability” of winning

Assuming that the anti-SLAPP statute applies, the court will then determine if the Plaintiff can establish “a probability that he or she will prevail” in the case.

The Plaintiff has the burden of proof at this stage to establish that he or she will “probably” prevail in their lawsuit. In making its determination, the court considers the complaint itself, the defendant’s response, any evidence that has been submitted up to that point, as well as any supporting and/or opposing affidavits stating the facts upon which the liability or defense is based.

Showing that one has a “probability” of prevailing is roughly similar to a “preponderance of the evidence” standard that is used in many types of civil cases. However, the determination is usually made at a very early stage of the case, so much of the evidence might not be fully developed. A Plaintiff will not be able to conduct a full “trial” to meet the burden of proof. He or she will simply present what they have at the time, along with their best arguments. The judge will then essentially make a “gut” decision on what he or she suspects the final outcome of the case would be if it were allowed to continue to its natural conclusion. This decision is made based on what the judge knows about the facts and the law at that stage.

What happens next?…

After a judge rules that the filing of a “special motion to strike” was appropriate, if the Plaintiff can then demonstrate that he or she will have a likely “probability” to prevail in the case, then the case simply moves forward as it would otherwise. Although many defendants may wish to then reconsider their position after such a ruling, it should be stressed that the ruling itself can not be admissible as evidence at any later stage of the case (or in any subsequent case). Furthermore, “no burden of proof or degree of proof otherwise applicable” is affected by the ruling in favor of a Plaintiff or other person opposing the “special motion to strike”.

If the Plaintiff cannot establish a probability of prevailing on the merits of the case, and the Defendant, or person submitting the special motion to strike prevails, the case or claims are then stricken and thrown out of court. Game over (though the ruling on the motion to strike is appealable by either side). If the defendant prevails, then he or she is also entitled to attorney’s fees and costs from the other side. However, if the Defendant loses on the motion, he or she is NOT required to pay the Plaintiff for bringing the motion unless it can be shown to be “frivolous or is solely intended to cause unnecessary delay”. In that sense, the California anti-SLAPP statute is weighted heavily in favor of the Defendant.

One note of clarification though regarding attorneys fees for Defendants who successfully file a “special motion to strike”: Most courts have recently interpreted the California anti-SLAPP statute to only require the payment of attorney’s fees and costs associated with the actual motion itself – not the payment of fees and costs associated with the entire underlying case (though Defendants are also usually entitled to fees and costs associated with successfully defending an appeal of a Special Motion To Strike).

That is a quick and dirty summary of California’s anti-SLAPP provision. Please consult an attorney for more details or information about similar laws in other states.

[Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information can not be guaranteed. Readers act on this information solely at their own risk. Neither HandelontheLaw.com, or any of its affiliates, shall have any liability stemming from this article.]
Source: Handelonthelaw.com Staff Writer

Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information can not be guaranteed. Readers act on this information solely at their own risk. Neither the author, handelonthelaw.com, or any of its affiliates shall have any liability stemming from this article.